What Would Be So Terrible About a Reversion to FISA?

Come this August, some of the electronic surveillance orders that were approved pursuant to the 2007 Protect America Act will begin to expire. As of now, there is no consensus in Congress on a replacement statute; therefore, as the New York Times reports tomorrow , “Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence. … [O]fficials have been preparing classified briefings for Congress on the intelligence ‘degradation’ they say could occur if there is no deal in place by August.”

What are these “old rules,” anyway—the ones that would be back in play if there is no amendment enacted by August, and that would cause such an intel “degradation”? That would be FISA, of course—a statute that was amended at the behest of the executive many times since its enactment in 1978 and used effectively by the NSA for more than two decades. The attorney general is quoted as saying that a return to the FISA legal regime would be “unthinkable.” But why?

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